[2025] KEBPRT 178 (KLR)

Sino & another v Sangale & another (Tribunal Case E199 of 2024) [2025] KEBPRT 178 (KLR) (14 March 2025) (Ruling)

Neutral citation: [2025] KEBPRT 178 (KLR)

Republic of Kenya

In the Business Premises Rent Tribunal

Tribunal Case E199 of 2024

CN Mugambi, Chair

March 14, 2025

Between

Joseph Onyango Sino

1st Tenant

Onesmus Ndeto Kitutui t/a Famica Body Builder

2nd Tenant

and

Levy Sangale

1st Landlord

Joy Sangale

2nd Landlord

Ruling

Introduction 1. The Tenants Application dated 4. 09. 2024 seeks orders that leave be granted to serve the Respondents who are currently domiciled in Canada or in the alternative the Respondents be served though their Counsel M/S Wairimu Mureithi & Associates. The Applicants have sought for an order of injunction restraining the Landlords from attaching the properties of the Applicants. Additionally, the Applicants have sought an order that the illegal increment of rent without following the due process is illegal, null and void for all intends and purposes.

The Tenant’s depositions 2. The Affidavit in support of the Application sworn by Mr. Joseph Onyango Sino may be summarized as follows;-a.That on 26. 8.2024, the Respondents through Chador Auctioneers proclaimed the Tenant’s goods and threatened to auction the said goods. The Tenants allege that the proclamation was without notice.b.That on 26. 8.2024, the Tenant received a letter from the Respondents Advocates purporting to auction the Tenants goods albeit illegally.c.That the Landlords rent claim is unreasonable as the Landlords purport to ask for rent at Kshs. 120,000/= from 2023 in violation of the agreement which indicated the rent would be Kshs. 110,000/=.d.That the initial rent was Kshs. 50,000/= which was later reviewed to Kshs. 110,000/= in 2019 and reviewed downwards during the Covid period to Kshs. 90,000/=.e.That the Tenant has paid all rent due to the Respondents and there are no arrears owing.

The Respondents depositions 3. The Replying affidavit of the Respondents sworn by Levy Sangale on his behalf and on behalf of his co-Respondent may be summarized as follows;-a.That the Application is meant to avert execution of proclamation of attachment of movable property issued to the Tenants on 26. 8.2024. b.That the Respondents are the proprietors of the suit property Mombasa Block IX/298. c.That in 2019 the parties entered into a lease agreement over the suit premises at an agreed monthly rent of Kshs. 110,000/= commencing 1. 01. 2019 and ending on December 2019. d.That as at October 2024, the Tenants were in rent arrears in the sum of Kshs. 2,421,950/= as per the tabulation annexed to the Landlords affidavit.e.That in December 2022, the rent was reviewed upwards to Kshs. 120,000/= and an agreement to that effect emailed to the Applicants who ignored it.f.That there was no agreement to review the rent downwards to Kshs. 90,000/=.g.That on 26. 8.2024, the Respondents served the Tenants with a notice to terminate tenancy and also initiated the process of levying distress for rent.h.That at the lapse of the notices, the Tenants made payments of Kshs. 50,000/= and Kshs. 40,000/= on 21. 9.2024 and 23. 9.2024 respectively.i.That the Tenants have not paid any rent for the year 2024 and the receipts shown are payments for the year 2023. j.That the Tenants have in the past issued bouncing cheques to the Respondents on 11. 7.2023. k.That if the Tenants claims are truthful, the Tenants ought to have attached statements tallying with the original rent and the alleged reduced rent.l.That the Tenants have intentionally duplicated banking slips, (see annexure JOS4, at page 1 and 2).m.That the Tenants have approached the auctioneer in a bid to negotiate on the payment of the arrears.n.That if the court is keen on allowing the Application, then the Tenants ought to be ordered to clear all the rent arrears at the rate of Kshs. 120,000/=.

The Tenants’ Further Affidavit 4. The Further Affidavit sworn by the Tenants may be summarized as follows;-a.That the Respondents have not pleaded in their affidavits the amount of rent they are claiming and for which specific months.b.That the Respondents mutually agreed to reduce the rent to Kshs. 90,000/= per month and specifically provided for how the same was to be shared between the Respondents and the Tenants continued to deposit the said rent as directed by the Respondents.c.That it is not clear how the Landlords arise at rent arrears of Kshs. 3,108,360/=.

Analysis and determination 5. The only issue that arises for determination is whether the Tenants are entitled to the orders sought in their Application.

6. The prayer that the Tenants be granted leave to serve the Respondents who are outside the country or in the alternative to serve the Respondents through their Counsel has been taken care of since the Respondents are represented by Counsel.

7. The Tenants have also sought an order that the Respondents be injuncted from attaching the Tenants properties pending the hearing and determination of the suit. Essentially what the Tenants are asking the court to do is to restrain the Respondents from exercising their right to levy distress for rent. The Tenants have deponed that their rent should have been calculated at the rate of Kshs. 110,000/= per month and not Kshs. 120,000/= per month as suggested by the Respondents.

8. I therefore need to determine the Applicants monthly rent before I can determine whether the Tenants are in any rent arrears. The Respondents have deponed at paragraph 6 of their Replying affidavit that in 2019, they entered into a lease agreement with the Tenants at an agreed monthly rent of Kshs. 110,000/=. The Respondents then depone at paragraph 8 of their said affidavit that in December 2022, the rent was increased to Kshs. 120,000/= and the Tenants were dully informed. The tenancy relationship between the parties being a controlled tenancy, the Landlords were required under Section 4(2) of Cap 301 to issue the Tenants with a Notice to alter their terms of tenancy. Absent such notice, the purported rent increment by the Respondents was illegal and contrary to statute. The Tenants have also deponed that during the Covid-19 pandemic, the Respondents mutually reduced the rent to Kshs. 90,000/= and advised the Tenants on the mode of sharing out the money. The Respondents have denied this arrangement and in the absence of an agreement confirming the same, I am persuaded that no such agreement existed.Consequently, the monthly rent applicable in this matter is Kshs. 110,000/=.

9. The Tenants have deponed in their Supporting affidavit that they have paid all rent due and they do not have any rent arrears. In support of this deposition, the Tenants have annexed receipts to their affidavit and marked the same as “JOS 4”. I have perused the receipts and it is true that they are all for the payment of rent for the years 2023 and 2022. The payments for 2023 were received in 2024 while the payments for 2022 were received in 2023.

10. In their Replying affidavit, the Respondents have analyzed the rent in the documents LSI annexed to their affidavit. According to the tabulation, the total outstanding balance as at October 2024 was Kshs. 2,421,950/=. Out of this sum, I will deduct the extra Kshs. 10,000/= charged by the Landlords from January 2023 to October 2024 totaling Kshs. 220,000/= giving us a balance of Kshs. 2,201,950/= as at October 2024.

11. Faced with the Respondents Replying affidavit, the Tenants in their Further Affidavit deponed that the Respondents did not specifically indicate the amount of rent they were seeking and for which months. The Tenants also deponed that the Respondents did not keep a proper record that would show how the figure of Kshs. 3,108,360/= demanded by the auctioneers was arrived at. The Tenants did not seem to have seen nor did they respond specifically to paragraph 16 of the Respondents affidavit wherein it is deponed;“That the Tenants have unashamedly paid no rent for the entire year of 2024. It is noteworthy that all the 2024 deposit slips are clearly indicated by the Tenants as 2023 payments for various months as a matter of fact marked as “JOS4” are August 2024 banking slips clearly marked as June and July 2023 rent payments.”

12. The Tenants have not disputed the tabulations of rent by the Respondents as they have not raised any issue with any single entry.

13. I am in the circumstances of the view, and I so find, that as at October 2024 the Tenants were in rent arrears amounting to Kshs. 2,201,950/= and absent evidence of rent payments, the said rent continuous to accrue at the rate of Kshs. 110,000/= per month.In these circumstances, the Landlords were entitled to levy distress for rent as provided for under Section 3(1) of the Distress for Rent Act, Cap 293 of the Laws of Kenya which provides as follows;-“Subject to the provisions of this Act and any other written law, any person having any rent or service in arrears and due upon a grant, lease, demise or contract shall have the same remedy by distress for the recovery of that rent or rent service as is given by the common law of England in a similar case.”

14. Are the Tenants entitled to orders of injunction against the Landlord in view of the finding that they are in such huge arrears of rent?In the case of; Samuel Kipkorir Ng’eno & Another vs Local Authorities Pension Fund (Registered Trustees) & Another, [2013] eKLR, the court held;-“The temporary injunction sought in the present application is an equitable remedy at the court’s discretion. He who comes to equity must come with clean hands. A tenant who is in huge arrears of rent tis undeserving of the court’s discretion. The court cannot be the refuge of a tenant who fails to meet his principal obligation of paying rent as and when it becomes due.”

15. I think I have said enough to demonstrate that the Tenants are not deserving of any injunctive relief and their prayer for such relief is one for declining.

16. I have already found that the rent increment from Kshs. 110,000/= to Kshs. 120,000/= was illegal as it did not comply and/or follow the procedure provided for under Section 4(2) of Cap 301 and to this extend I agree with the Tenants.

Dispositions 17. In concluding this matter, I do make the following orders;-a.That the Tenants prayer for orders of injunction against the Respondents is hereby dismissed.b.That the Landlords increment of rent from Kshs. 110,000/= to Kshs. 120,000/= is declared null, illegal and unenforceable.c.The Reference by the Tenant has been dealt with in the preceding findings of the Tribunal and nothing remains in the Reference to be determined.Consequently, the final orders in this matter shall be in the terms of the orders issued at (a) and (b) above.d.Each party will bear their own costs.e.This file is ordered closed.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 14THDAY OF MARCH, 2025HON. CYPRIAN MUGAMBI - CHAIRPERSONBUSINESS PREMISES RENT TRIBUNAL